United States v. Hall

UNITED STATES OF AMERICA Plaintiff, v. EARNEST BRADLEY HALL, Defendant.

CRIMINAL NO. 7:14-2-KKC-2

CIVIL NO. 7:15-105-KKC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION PIKEVILLE

November 30, 2020

OPINION AND ORDER*** *** ***

Earnest Bradley Hall, pro se, moves to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. (DE 54; DE 55.) The Government has responded (DE 69), and Hall has replied (DE 73). Upon consideration of these filings and the record in this case, for the reasons given below, Hall's § 2255 motion will be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

Hall pled guilty pursuant to a plea agreement (DE 32) to receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2). (DE 34.) In November 2014, he was sentenced to 180 months in prison, the statutory mandatory minimum term of incarceration as well as the agreed recommended term in the parties' plea agreement, followed by a lifetime term of supervised release. (DE 31; DE 34.) Hall's pro se appeal (DE 35) was dismissed by the Sixth Circuit as untimely filed. (DE 43.)

In October 2015 Hall filed a writ of habeas corpus, construed as a § 2255 motion (DE 45), which the presiding and then District Judge Amul Thapar later dismissed (DE 63) upon Hall's motion (DE 56). In November 2015 Hall filed a § 2255 motion on the standard form, listing four claims: (1) "Ineffective assistance of counsel: counsel failed to file notice of appeal timely"; (2) "Ineffective assistance of counsel: counsel failed to file an appeal or an Anders brief'";¹ (3) "Ineffective assistance of counsel: counsel failed to fully investigate the case"; and (4) "Counsel failed to adequately represent client and coerced client to plead guilty telling him that he would receive life if not."² (DE 54 at 5-9 (minor alterations for readability).) The Government responds that Hall's § 2255 claims are meritless. (DE 69.)

II. ANALYSIS

Under 28 U.S.C. § 2255(a), a federal prisoner may seek habeas relief on grounds that his conviction or sentence violated the Constitution or laws of the United States, that the court lacked jurisdiction to impose the sentence, that the sentence exceeded the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. To succeed on a § 2255 motion alleging constitutional error, a federal prisoner "must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)).

To obtain relief for a non-constitutional error, he "must establish a 'fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process." Id. (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)). In sum, a federal prisoner must allege in his § 2255 motion that: (1) his conviction was the result of an error of constitutional magnitude; (2) his sentence was imposed outside of statutory limits; or (3) there was an error of law or fact so fundamental as to render the proceedings invalid. Pough v. United States, 442 F.3d 959, 964 (6th Cir.2006) (citing Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). And he must prove his allegations by a preponderance of the evidence. Pough, 442 F.3d at 964.

A. Hall's Ineffective Assistance of Counsel Claims

Hall's four claims argue that this counsel was ineffective. (DE 54 at 5-9.) As noted above, only certain claims can be brought on collateral review. One of those is when a constitutional violation has occurred, which is what Hall relies upon here. Alleging ineffective assistance of counsel is not just any perceived error by counsel, but an error of constitutional magnitude in the sense that the act or omission of counsel, if shown, would violate Hall's Sixth Amendment right to the effective assistance of counsel.

To prevail on a claim of ineffective assistance of counsel, Defendant must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984), requiring him to establish first, that counsel's performance was deficient and second, that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687. To prove deficient performance, Hall must show that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. Defendant meets this burden by showing "that counsel's representation fell below an objective standard of reasonableness" as measured under "prevailing professional norms" and evaluated "considering all the circumstances." Id. at 688. Regarding the deficiency prong, Defendant "must identify specific 'acts or omissions [that] were outside the wide range of professionally competent assistance.'" Borch v. United States, 47 F.3d 1167 (6th Cir. 1995) (quoting Strickland, 466 U.S. at 690)). In order to prove prejudice, Defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. When evaluating prejudice, courts generally must take into consideration the "totality of the evidence beforethe judge or jury." Id. at 695. "When deciding ineffective-assistance claims, courts need not address both components of the [deficient performance and prejudice] inquiry 'if the defendant makes an insufficient showing on one.'" Campbell v. United States, 364 F.3d 727, 730 (6th Cir. 2004) (quoting Strickland, 466 U.S. at 697)).

1. Alleged Appeal Failures by Counsel

Hall's first two grounds for relief asserted in his § 2255 motion both pertain to trial counsel's alleged ineffectiveness concerning a direct appeal of Hall's criminal conviction. In ground one, Hall asserts ineffective assistance of his trial counsel because "Counsel Failed to File Notice of Appeal Timely." (DE 54 at 4.) In ground two, Hall asserts ineffective assistance of his trial counsel because "Counsel Failed to File Appeal or Anders Brief." (DE 54 at 5.) These two grounds are intertwined, as are Hall's arguments in support of these two grounds set forth in his memorandum (DE 55) and his reply (DE 73).

Both claims arise from Hall's mistaken belief that his court-appointed trial counsel, James Craft, was constitutionally obligated to 1) file a timely notice of appeal on Hall's behalf, and 2) to continue to represent him on appeal, including filing an appellate brief directed to the merits or, at least, a brief pursuant to Anders v. California, 386 U.S. 738 (1967). But because Attorney Craft had no such obligations in this case, Hall is unable to show that counsel rendered constitutionally deficient performance and therefore these two grounds are without merit.

A defendant has a constitutional right to pursue a direct appeal of his criminal conviction and sentence. Coppedge v. United States, 369 U.S. 438, 444 (1962). In addition, "[a] lawyer's duty to his client does not cease after the entry of a judgment of conviction. Rather, '[t]rial counsel in criminal cases, whether retained or appointed . . . is responsible for the continued representation of the client on appeal until specifically relieved by the Court of Appeals.'" United States v. Pankey, 879 F.2d 864, 1989 WL 78939, at *5 (6th Cir. 1989)(unpublished table decision) (quoting Sixth Circuit Rule 12(a)). Hall confuses his general right to pursue an appeal and to have trial counsel represent him on that direct appeal as imposing a mandatory obligation on counsel to file an appeal and continue to represent him in that appeal unless the appellate court permits withdrawal.

Hall maintains he is entitled to § 2255 relief because trial counsel failed to file a notice of appeal. The "supporting facts" section of the form § 2255 motion directs Hall, "[d]o not argue or cite law. Just state the specific facts that support your claim." Hall writes, "My counsel did not file a timely notice of appeal. Didn't file a Notice of Appeal at all." (DE 54 at 4.) Hall offers no other factual information in his § 2255 motion filing. A timely-filed notice of appeal would, of course, have permitted Hall to pursue his direct appeal before the Sixth Circuit, rather than have his direct appeal dismissed for being untimely initiated.

The test for claims of ineffective assistance of counsel provided in Strickland also applies to claims that counsel was constitutionally ineffective for failing to file a notice of appeal. Roe v. Flores-Ortega, 528 U.S. 470, 476 (2000). To show that counsel performed deficiently, a defendant must demonstrate either that the attorney disregarded a client's instructions to file a notice of appeal or failed to consult with the defendant about an appeal when counsel knew or would have known that the defendant might want to appeal. Flores-Ortega, 528 U.S. at 477-78. If counsel failed to file a notice of appeal after being instructed or directed to do so, counsel has not only performed deficiently, but prejudice to the defendant is also presumed since defendant has been deprived of the opportunity of an appeal proceeding. Where an attorney has failed to consult with his client regarding an appeal in circumstances where counsel knew or should have known that defendant might want to appeal, although deficient performance has been shown, the defendant must still demonstrate prejudice. This requires that defendant demonstrate a reasonable probabilitythat, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed. Flores-Ortega, 528 U.S. at 484.

It is undisputed that attorney Craft did not file a notice of appeal. Hall did so pro se and his appeal was dismissed because his notice was filed late. Hall's arguments about Craft's failure to file a notice of appeal are two-fold: one, that counsel should have automatically filed a...